Elsworthy v Forgacs Engineering Pty Limited
[2023] NSWPICMP 51
•21 February 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Elsworthy v Forgacs Engineering Pty Limited [2023] NSWPICMP 51 |
| APPELLANT: | Stephen Phillip Elsworthy |
| RESPONDENT: | Forjacs Engineering Pty Ltd |
| Appeal Panel | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 21 February 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Chronic Regional Pain Syndrome (CRPS); appellant complained on appeal about the Medical Assessor’s (MA) failure to assess impairment from CRPS; MA provided sufficient and clear reasons why CRPS was not assessed because on his clinical findings on the day of examination there was no rateable impairment; the MA is entitled to rely on his clinical findings on the day of examination; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 7 November 2022 Mr Phillip Elsworthy (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mark Burns, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 October 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
The appellant did not request a re-examination in the formal part of their Application to Appeal but in the body of their submissions a re-examination was sought. As a result of the Appeal Panel’s preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel could not find error. Absent error the Appeal Panel has no power to require the worker to undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) statement of the appellant dated 2 November 2022.
The Appeal Panel notes that the appellant did not refer to the additional evidence in the formal part of his Application for Appeal but it is clear from the submissions that the availability of additional evidence is being sought and is one of the grounds of appeal.
The appellant submits that the evidence is relevant. The appellant submits that the evidence was not available and could not reasonably have been obtained because it concerns the manner of the conduct of the assessment itself.
Forjacs Engineering Pty Ltd (the respondent) objects to the admission of the additional evidence.
The Appeal Panel determines that the evidence should not be received on the appeal because the appellant has been examined by the MA on the day of assessment. The MA is entitled to apply his clinical expertise in the conduct of the assessment and there is a presumption of regularity in the conduct of the assessment.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The matter was referred to the Medical Assessor as follows:
The following matters have been referred for assessment (s 319 of the 1998 Act):
“• Date of injury: 2 May 2011 (primary injury to left wrist)
• Body parts referred: Left upper extremity,Right upper extremity,
Left lower extremity,
Right lower extremity,
Complex Regional Pain Syndrome.
· Method of assessment: Whole person impairment
The matter is referred as a threshold dispute only – the Medical Assessor is to assessment the whole person impairment regardless of the date of injury.”The MA certified impairment as follows:
Body Part or system
Date of Injury
Chapter, page and paragraph number in NSW workers compensation guidelines
Chapter, page, paragraph, figure, and table numbers in AMA5 Guides
% WPI
WPI deductions pursuant to S323 for pre-existing injury, condition, or abnormality (expressed as a fraction)
Sub-total/s % WPI (after any deductions in column 6)
Left upper extremity
2 May
2011
Chapter 2
Chapter 16
0%
0%
0%
Right upper extremity
2 May 2011
Chapter 2
Chapter 16
0%
0%
0%
Left lower extremity
2 May 2011
Chapter 3
Chapter 17
Table 17-33
1%
0%
1%
Right lower extremity
2 May 2011
Chapter 3
Chapter 17
0%
0%
0%
Complex Regional Pain Syndrome
2 May 2011
Chapter 17
Table 17.1
0%
0%
0%
Total % WPI (the Combined Table values of all sub-totals)
1%
The appellant appealed.
In summary, the appellant’s complaints on appeal concerns the Medical Assessor’s failure to assess whole person impairment (WPI) as a result of CRPS.
In summary, the respondent submitted that the Medical Assessor did not apply incorrect criteria nor did he make a demonstrable error and he provided sufficient reasons that the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a physical examination, make a diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an assessment of impairment. An assessment of impairment is made on the basis of the findings on the day of examination. That assessment must be made on the basis of a correct application of the criteria in the Guides.
The Panel notes that the Medical Assessor has taken a detailed history of injury which is consistent with the other evidence that was before him.
The Medical Assessor has taken a detailed history as follows:“• Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: Mr Elsworthy reported that on 2 May 2011 he was stepping over some scaffolding when he tripped and fell forward. He landed heavily upon his outstretched left hand and his left elbow and left knee. He was taken to Maitland Hospital where x-rays of the left wrist revealed a fracture of the radial styloid. His left arm was placed in a back slab, and he was sent home. He was followed up by Dr Thorvaldson, Orthopaedic Surgeon the following day. The back slab was removed, and his left arm was placed in a full cast. He was subsequently reviewed on 10 June 2011 when further x-rays were taken, and it was noted that the fracture had healed. The cast was then removed. I note that the x-rays taken on that day were also reported as showing moderate osteoarthritic changes in the 1st carpometacarpal joint of the left hand. He was subsequently referred to physiotherapy and it was noted that his response to physiotherapy was quite slow.
He was then reviewed by Dr Thorvaldson on 28 June 2011, and it was noted that his left wrist had remained stiff, and he was now sensitive to light touch and that there was mottling in the palm of the left hand. The doctor was concerned that he had developed the early changes of Complex Regional Pain Syndrome Type 1. Mr Elsworthy stated today that he believed that at the time he had also noted tingling in his right hand whilst doing physiotherapy. He reported that in Mid 2011 he was at home when some papers fell to the floor. He squatted down to pick them up and noted pain in his left knee. Dr Thorvaldson arrange for an MRI scan which revealed a left medial meniscal tear. In July 2011 a left partial meniscectomy was carried out.He was referred to Dr Russo, Pain Management Specialist whom he believed had made a diagnosis of Complex Regional Pain Syndrome Type 1, initially in the left hand and then mirrored into his right hand. He then commenced a substantial amount of treatment over several years including physiotherapy, hydrotherapy, multiple medications including Palexia, Lyrica, anti-depressants and a Ketamine infusion and stellate ganglion blocks on 2 occasions. He also had psychiatric counselling. Mr Elsworthy today reported that none of these treatments had given him any benefit. In fact, he has had a severe reaction from the Ketamine infusion, which had to be ceased. He also reported that he had developed right-sided tremors involving the right arm and right leg. Due to the tremors, he was referred to Dr Loiselle, Neurologist who carried out nerve conduction studies. When questioned about the reports of his investigations and the diagnosis of Dr Loiselle he stated that the doctor had come to no firm diagnosis.
He was subsequently referred to Dr Hayes at the Hunter Pain Service and attended a short-term Pain Program. This also did not give him any significant benefit. He was then referred to Professor Cousins at Royal North Shore Hospital and it was recommended that he do the ADAPT Program, but this was not approved by the insurance company. By this time, he reported that he was developing pain and discomfort in both legs with increased sensitivity.Mr Elsworthy reported that he also had significant problems with his nails on both hands and toes. His nails, he stated had become brittle and had striations. They were initially cut on occasions, but they continued to grow abnormally. This was mainly the case with the big toenails on each side. Eventually he developed ingrown toenails in the big toe on each side and in 2018 the toenails were removed completely (by Dr James O’Sullivan, Orthopaedic Surgeon). It appears that it was decided this was a better procedure than having a wedge resection.
If anything, he reported that the pain in his lower limbs, which had come on over time was worse after the operations on his big toenails. He reported that since 2020 he has been seeing Dr Houman Ebrahimi, Radiologist at Alto Specialists in Newcastle. I note that this is mainly a spinal practice, and it appears that he has been seeing the doctor for significant pain in both his back and neck. He has had several investigations as well as spinal injections. He has been trialled on a few different treatments and reported that he has recently commenced using Cannabis Oil. This was not prescribed by Dr Ebrahimi but another doctor in the practice who utilises this medication. I note that there was a mention in the documentation that a spinal cord stimulator had been recommended but was not approved by the insurer.
· Present treatment: He continues to see Dr Forbes, his General Practitioner on a 3 monthly basis mostly for prescriptions. He has been seeing Dr Ebrahimi for his back problems and neck problems but has no appointments at the current time. He is currently not having any formalised physiotherapy. He continues to take over the counter Panadol and Nurofen for pain relief and uses Cannabis Oil at night.
· Present symptoms:
Left upper extremity:
He reported continuing hyperalgesia in the left forearm and wrist, which varies in intensity. He also reported having allodynia. The pain is greatest in the wrist itself with decreased grip strength and decreased range of movement. He reports also having pain and discomfort in the left elbow with decreased range of movement and increased sensitivity. He reported that his left shoulder is ‘not bad’ and is not involved in significant pain or discomfort.Right upper extremity:
He reports having pain or discomfort throughout the entire right hand. He reported a decrease in strength in that hand and a decrease in movement. He stated that he had hyperalgesia to light touch and allodynia to point touch. The right elbow is also sore, and he stated that he has a tremor, which is relatively constant in his right arm. There is no pain or discomfort reported in the right shoulder, which he reported as ‘good’ at the current time.
Right and left lower extremities:
Apart from a tremor in the right leg, which is not present in the left he states that the legs are similar. He reported that he cannot balance properly on either leg and that sensation in both legs feels as if he has ‘10 layers of clothing’ on the legs. He also has intermittent pain in both legs. With respect to the legs, he reports that he also has sweating all the time, which is worse in the wintertime. He also believes that he has a degree of swelling in both legs.
· Details of any previous or subsequent accidents, injuries or condition: He reported having a previous motor bike accident in 1995 and sustained a fracture to the transverse process at L4/5. He did not require any surgery.
· General health: In the past he has had his appendix removed. I also noted that investigations have revealed degenerative changes both his cervical spine and lumbar spine. They have also revealed moderate to severe osteoarthritic change in the 1st CMC joint of both hands. His investigations are consistent with having generalised osteoarthritis. He reported no other medical conditions.
· Work history including previous work history if relevant: He stated that after leaving school he worked in the metal industry as an overhead crane operator for a period of 18 months. He then commenced working with the police as a probationary constable and worked there for 12 months. He subsequently returned to the steel industry and obtained an apprenticeship as a boilermaker with Com Steel. It appears that he competed the apprenticeship and then had a number of short-term jobs. He eventually commenced work with Forgacs Engineering Pty Ltd as a boilermaker in 2010. Following the injury on 2 May 2011 he was on suitable duties until June 2011. He was then certified totally unfit for work. He has not worked since that time.
He reported that in 2019 he was granted a Disability Support Pension and remains on this payment.Social activities/ADL: He reported having been married on 2 occasions with 3 adult children from the first marriage and 4 children from the second marriage. His youngest child is 18 years of age and currently completing year 12 at school. He stated that domestically he can hardly do any activities at all. He does attempt to give some assistance to his wife by doing some of the cooking. They receive help from several of the children as far as cleaning up around the house and looking after the gardens and lawns. He can drive for short period of time, mostly to the local shops and back.”
The Medical Assessor conducted a thorough physical examination and reported his findings as follows:
“Mr Elsworthy was 177cms tall and weighed 125.1kgs. He was noted to walk without the aid of an assistive device but stated that he tends to get cramps in both legs. I noted that he did have a tremor, which was present in the right arm and right leg at various times.
Upper extremities:
Examination of both shoulders revealed no evidence of localised tenderness. He did report significant tenderness over the rhomboid muscles bilaterally and over the scapulae on each side. It was noted though that there was no evidence of muscle wasting.
With respect to both elbows, he reported increased sensitivity to light touch on both sides, but the left was worse than the right. Active range of movement in both elbows was measured using a goniometer on several occasions. Significant pain was reported on supination on each side, down the entire forearm. It was noted though that when measuring movement in the wrists on each side that he was able to supinate both elbows significantly more.
Elbow Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
30°, 80°, 70°
60°, 90°, 100°
Extension
0°
0°
Supination
20°
20°
Pronation
60°, 80°
90°
Examination of both wrists revealed increased sensitivity on both sides, which involved the entire hand. Active range of movement in both wrists was measured using a goniometer. It was noted that there was marked inconsistency in range of movement was well as pain behaviour.
Wrist Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
30°, 20°, 10°
30°, 20°
Extension
45°, 60°
50°
Radial Deviation
5°, 15°
20°
Ulnar Deviation
25°, 30°
30°
Examination of both hands revealed pain over the first CMC joint on the left side but no significant pain on the right side. I note that he was able to make a reasonable fist on each side. It was noted that there was slight swelling in the fingers of both hands associated with dependency.
The circumference of both upper arms was 37cms and both forearms 33cms.
Lower extremities:
Examination of both hips revealed no tenderness. It was noted that hip movement was relatively normal when getting onto and off the couch and when seated.
Examination of both knees revealed mild hyperalgesia on both sides. Active range of movement in both knees was measured using a goniometer. In the supine position on the couch all movements were markedly restricted. I noted though that in the seated position with his legs over the side of the couch he was able to bend his knees with the feet under the couch itself. It was noted though that when he was standing and walking that his knees were much straighter than they were on examination. At the most there was only 5° flexion.
Knee Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
30° (100°+)
50° (100°+)
Extension
-10°, [ <5°]
-10°, [<5°]
(Seated position), [Standing and walking position]
Examination of both ankles also revealed reports of hyperalgesia bilaterally. Active range of movement in both ankles was measured using a goniometer. Dorsiflexion was initially absent on formal testing in the supine position and plantarflexion inconsistent. At the end of the formal examination, it was noted that he was able to go down into a semi-crouched position to put on his shoes and that dorsiflexion was greater than 10° on both sides.
Ankle Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Dorsiflexion
0°, (>10°)
0°, (>10°)
Plantarflexion
10° - 30°
10° - 30°
(Semi-crouched position)
The circumference of the right thigh 10cm above the patella was 55cm, which was equal to the left thigh. The circumference of the right mid-calf was 27cm compared with 29cm on the right. There was mild eczema below mid-calf on each side consistent with mild varicose eczema.
Complex Regional Pain Syndrome:
Mr Elsworthy’s arms and legs were assessed to see whether the criteria for Complex Regional Pain Syndrome were present.
With respect to symptoms, he did report the following.· Sensory – He reported both hyperaesthesia and allodynia of both the upper extremities and both lower extremities.
· Vasomotor – He did report in the past there being temperature changes and asymmetry and skin colour changes.
· Sudomotor/oedema – He reported some oedema in the past and increased sweating involving the hands and feet.
·Motor/trophic – He reported having a decrease in range of movement in multiple joints in the upper and lower limbs as well as having a tremor in the right arm and right leg. He also reported having significant nail changes in both the fingernails and toenails.
With respect to the examination findings the following criteria were noted.· Sensory – There were reports of hyperalgesia and allodynia during the examination.
· Vasomotor - With respect to both the upper extremities and lower extremities there was no evidence of abnormal temperature or temperature asymmetry. Additionally, there was no evidence of skin colour changes or colour asymmetry consistent with CRPS.
· Sudomotor/oedema – It was noted that the left calf muscle was bigger than the right calf muscle, but this was consistent with possible varicose veins. It was noted that there was no evidence of sweating or sweating asymmetry on either the upper extremities or lower extremities.
Motor/trophic – I noted that there were decreased ranges of movement in multiple joints in the upper limbs and lower limbs. I also noted that his nails had not been cut for a very long time in either the toes or the fingers. He stated that he could not cut the nails because it was too painful. There were some striations in the nails on the toes so this criterion could have been present.”
The Medical Assessor summarised the injury and his diagnosis as follows:
“summary of injuries and diagnoses:
Mr Elsworthy sustained a fracture to the left radial styloid when he fell at work. He also injured his left elbow and left knee. These were soft tissue injuries.”
The Medical Assessor noted that there were inconsistencies in the appellant’s presentation as follows:
“Throughout the entire consultation I noted marked inconsistencies. This was associated with pain behaviour with consistent moaning and groaning. There was also marked inconsistency in range of movement in multiple joints.”
The Guides provide at paragraph 1.36 the following in respect of “inconsistent presentation”:
“Inconsistent presentation
1.36 AMA5 (p 19) states: ‘Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual’s range of motion are good but imperfect indicators of people’s efforts. The assessor must use their entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing.’ This paragraph applies to inconsistent presentation only.”
The Medical Assessor provided thorough reasoning for his assessment as follows:
“a. My opinion and assessment of whole person impairment
Mr Elsworthy has a 1% whole person impairment.
In making that assessment I have taken account of the following matters:-
The history I obtained from Mr Elsworthy§My physical examination of Mr Elsworthy
§My review of his documentation
§My review of the criteria for Complex Regional Pain Syndrome Type 1 from Table 17.1 of the 4th Edition of the New South Wales Guidelines.
§My review of Paragraph 1.36 of the 4th Edition of the New South Wales Guidelines dealing with inconsistent presentation.
b. An explanation of my calculations (if applicable)
Reviewing the criteria necessary for an assessment of Complex Regional Pain Syndrome Type 1 from Table 17.1 of the 4th Edition of the New South Wales Guidelines I noted the following.
1.Mr Elsworthy does display continuing pain,which is disproportionate to any causal event.
2.With respect with his reported symptoms I note that he does have at least one symptom in each of the following categories.
§Sensory – Reports of hyperaesthesia and allodynia.
§Vasomotor – Reports of previous temperature changes and skin colour changes in both upper limbs and lower limbs.
§Sudomotor/oedema – Reports of swelling and also increased sweating in both the upper extremities and lower extremities.
§Motor/trophic – Reports of decreased range of movement and also tremor in the right arm and right leg and additionally trophic changes in the hair and nails.
3. With respect to physical signs found out today’s consultation I noted the following.
§Sensory – There was evidence of hyperalgesia and also allodynia. This appeared to be realtively global in both upper limbs and both lower limbs.
§Vasomotor – There was no evidence of temperature asymmetry or increased or decreased temperature in either upper limb or either lower limb. There was also no evidence of asymmetric or change in skin colour in either upper limb or either lower limb.
§Sudomotor/oedema – Whilst there was some evidence of swelling in the hands and also in the left leg I believe this was probably associated with dependency or varicose veins (in the leg) rather than CRPS. There was no evidence of sweating asymmetry.
§Motor/trophic – There was evidence of decreased active joint range of motion in all 4 extremties but there was significant inconsistency. There was evidence of tremor in the right arm and right leg. Additionally there were some trophic changes seen mostly in the nails of the feet. There was no evidence of trophic changes in the skin.
4. There were other diagnoses, which would have explained some of the physical symptoms and signs.
It was noted that under Table 17.1 of the 4th Edition of the New South Wales Guidelines that Mr Elsworthy did not have physical signs in all 4 categories on the day of examination. Therefore he cannot be assessed as having Complex Regional Pain Syndrome Type 1.
I would like to note though that he does have enough symptoms and signs to be diagnosed with Complex Regional Pain Syndrome Type 1 under the Budapest Criteria. Under the Budapest Criteria only 2 – 4 physical sign categories would need to be present at the time of examination. Under the New South Wales Guidelines there must be a physical sign in all 4 categories. Therefore whilst he does have enough criteria under the Budapest Criteria to be diagnosed with clinical Complex Regional Pain Syndrome Type 1 he does not have enough physical signs to be assessed as CRPS 1 from the New South Wales Guidelines.
As he cannot be assessed as Complex Regional Pain Syndrome from the New South Wales Guidelines I am left to look at other methods to assess his underlying initial injuries. With respect to his left wrist fracture this was an undsiplaced fracture of the radial styloid. This healed completely and would have left him with no ongoing symptomatology. His ongoing decrease in range of movement in the left wrist is now associated with chronic pain and is not due to the original minor fracture.With respect to his left elbow I note that the only injury was a mild soft tissue injury. This also would have been expected to resolve completely. His ongoing decrease in range of movement was noted to be inconsistent especially with flexion and supination. I therefore believe that range of movement is not a reliable method for assessment. I believe that his decreased range of movement is assocaited with pain as is the decreased range of movement in his elbow. As pain is not assessable under the guidelines he would have an assessment of 0% whole person impairment.
With respect to the right upper extremity as he does not pass the threshold for Complex Regional Pain Syndrome Type 1 and there was no underlying pathology in the right upper extremity that he would also have a 0% whole person impairment.
With respect to the left leg I note that he did sustain a soft tissue injury to his left knee and at a later time did twist the knee and require surgery. This was a partial medial meniscectomy. I believe that the partial medial meniscectomy is an assessable injury and there is pathology. This from Table 17-33 would give 1% whole person impairment. The remainder of the left leg including the left ankle and foot would give no assessable impairment as the changes are due to pain, which is not assessable.
With respect to the right lower extremity there was no evidence of discrete injury to the right leg in the initial injury. Therefore there would be no assessable impairment and would be assessed as 0% whole person impairment.
In conclusion whilst I believe that Mr Elsworthy has a mixture of chronic pain behaviour and inconsisent range of movement there is also the issue that he probably does have underlying significant pain. Unfortunately as he does not reach the threshold for Complex Regional Pain Syndrome and chronic apin is not assessable it canott be assessed. Therefore his fianl score would be 1% whole person impairment.”
The Medical Assessor had regard to the other expert opinion that was before him and provided brief comments as follows:
“I note the Independent Medical Examination report of Dr David Gorman dated 10 June 2021. Dr Gorman states that Mr Elsworthy has a 10 year history of widespread pain following a fall at work. He stated that he has been diagnosed as having Complex Regional Pain Syndrome initially in the left upper extremity related to his wrist fracture and later in both upper extremities and both lower extremities. He does report that Mr Elsworthy has osteoarthritis in both 1st carpometacarpal joints, which is not related to his work injury. In point 2 of his answers to specific questions he states; ‘I believe that it is consistent with the history given and consistent with the Budapest Criteria as required in the Workers Compensation Guidelines’. Whilst I agree with Dr Gormon that he does have enough criteria to be diagnosed with Complex Regional Pain Syndrome under the Budapest Criteria but this criteria is different from that listed under the Workers Compensation Guidelines.
Under the answer to question 7 Dr Gormon states; ‘Mr Elsworthy meets the diagnostic criteria for Complex Regional Pain Syndrome having continuing pain disproportionate to the causal event. He has at least one sign and one symptom in each of the following in each upper and lower limb.1)Sensory – Reports hypersensitivity and signs of allodynia
2)Vasomotor – Evidence of asymmetric skin colour changes
3)Sudomotor -oedema – He has evidence of swelling and asymmetry
4)Motor/trophic – He has evidence of motor dysfucntion with gross tremor and dystonia as well as trophic changes to the hair, nails and skin’.
Whilst Dr Gormon may have found such symptoms and signs in his consultation I noted today that there was no evidence of asymmetric skin colour changes and no evidence of temperature change. He therefore does not have signs in all 4 categories and cannot be assessed under the New South Wales Guidelines as having CRPS. The only assessment that Dr Gormon makes with which I can agree is the 1% whole person impairment for the partial medial meniscectomy carried out in his left knee.
I note the Independent Medical Examination report of Dr Ross Mellick dated 30 November 2021. Dr Mellick was unable to carry out a full physical examination because of the reported high level of apprehension displayed by Mr Elsworthy as well as repeated grimacing and groaning. Therefore he stated that Mr Elsworthy was not happy for him to touch him. Eventually he stated that he could not confirm the diagnosis of Complex Regional Pain Syndrome. Finally Dr Mellick reported ‘whilst there is no doubt that there is a considerable psychological disorder and he is having psychiatric treatment I am not able to determine the magnitude of the psychological issues and what proportion of the existing clinical problem is determined by it.’”The guides provide specific criteria for the assessment of CRPS at Chapter 17 as follows:
“Table 17.1 is used to determine if complex regional pain syndrome (CRPS) is a rateable diagnosis. It is important to exclude diagnoses that may mimic CRPS, such as disuse atrophy, unrecognised general medical problems, somatoform disorders and factitious disorder. Once the diagnosis is established, assess impairment as in AMA5.
Complex Regional Pain Syndrome Type 1
For Complex Regional Pain Syndrome Type 1 (CRPS1) to be present for the purposes of assessment:
· the diagnosis is to be confirmed by criteria in Table 17.1
· the diagnosis has been present for at least one year (to ensure accuracy of the diagnosis and to permit adequate time to achieve maximum medical improvement)
· the diagnosis has been verified by more than one examining physician
· other possible diagnoses have been excluded.
· CRPS1 is to be assessed as follows:
o Apply the diagnostic criteria for complex regional pain syndrome type 1 (Table 17.1).
Table 17.1 Diagnostic Criteria for Complex Regional Pain Syndrome types 1 and 2
1. Continuing pain, which is disproportionate to any causal event.
2. Must report at least one symptom in each of the four following categories:
• Sensory: Reports of hyperaesthesiae and/or allodynia.
• Vasomotor: Reports of temperature asymmetry and/or skin colour changes and/or skin colour asymmetry.
• Sudomotor/oedema: Reports of oedema and/or sweating increase or decrease and/or sweating asymmetry.
• Motor/trophic: Reports of decreased range of joint motion and/or motor dysfunction (tremor, dystonia) and/or trophic changes (hair, nail, skin).
3. Must display at least one sign* at time of evaluation in all of the following four categories:
• Sensory: Evidence of hyperalgesia (to pin prick) and/or allodynia (to light touch and/or deep somatic pressure and/or joint movement).
• Vasomotor: Evidence of temperature asymmetry and/or asymmetric skin colour changes.
• Sudomotor/oedema: Evidence of oedema and/or sweating asymmetry.
• Motor/trophic: Evidence of decreased active joint range of motion and/or motor dysfunction (tremor, dystonia) and/or trophic changes (hair, nail, skin).
4. There is no other diagnosis that better explains the signs and symptoms.
*A sign is included only if it is observed and documented at time of the impairment evaluation.
Then consider the following in assessing CRPS1:
·If the criteria in each of the sections 1, 2, 3 and 4 in Table 17.1, above, are satisfied, the diagnosis of CRPS1 may be made.
·Rate the extremity impairment resulting from loss of motion of each individual joint involved.
·Rate the extremity impairment resulting from sensory deficits and pain, according to the grade that best fits the degree or amount of interference with ADL, as described in AMA5 Table 16.10a (p 482). Use clinical judgement to select the appropriate severity grade and the appropriate percentage from within the range shown in each grade. The maximum value is not automatically applied. The value selected represents the extremity impairment. A nerve value multiplier is not used.
·Combine the extremity impairment for loss of joint motion with the impairment for pain or sensory deficit using the Combined Values Chart (AMA5, p 604) to obtain the final extremity impairment.
·Convert the final extremity impairment to WPI using AMA5 Table 16.3, (p 439) for the upper extremity and AMA5 Table 17.3 (p 527) for the lower extremity.”
The Medical Assessor’s role is to make an independent assessment on the day of examination. He has to rely on his findings on the day of examination and must make clinical judgments using his clinical expertise. He is not bound to follow the opinion of other experts whose opinions are in evidence before him. The Medical Assessor has had clear regard to the other opinions that were before him. Dr Mellick, the Independent Medical Expert (IME) qualified on behalf of the respondent, could not conduct a physical examination because of the appellant’s pain behaviours. Dr Gorman was the IME qualified on behalf of the appellant. He relied on the Budpaest criteria to assess the appellant as suffering from CRPS and to rate and impairment, However, the Budapest criteria do not apply. It is the NSW Workers Compensation Guidelines which apply and the criteria in the NSW Guidelines prescribe a more stringent test in order to be able to rate impairment as as result of CRPS. The Medical Assessor has clear regard to the opinion of Dr Gorman, the IME qualified on behalf of the appellant who made an assessment of impairment based upon incorrect criteria. The Medical Assessor correctly points out that:
“I believe that it is consistent with the history given and consistent with the Budapest Criteria as required in the Workers Compensation Guidelines. Whilst I agree with Dr Gormon that he does have enough criteria to be diagnosed with Complex Regional Pain Syndrome under the Budapest Criteria but this criteria is different from that listed under the Workers Compensation Guidelines.
The Medical Assessor has given an entirely proper and correct explanation of why his opinion differs from that of Dr Gorman. He is not required to do more than this. The Medical Assessor‘s findings on physical examination, and his regard to the other evidence that was before him, provide sufficient reasons to support his finding that CRPS is not a rateable impairment as a result of the injury referred to him.
The appellant cannot qualify for a rateable impairment for CRPS because while he has symptoms in all four categories, he only has signs in two. He must have signs in all four. There were no vaso motor or pseudo motor changes present on the day of the examination by the Medical Assessor. These were not found by the Medical Assessor on the day of examination. The Medical Assessor is entitled to rely on his clinical findings on the day of examination and apply his clinical expertise in making his assessment, noting the Medical Assessor found that the appellant demonstrated high levels of inconsistency.
The Appeal Panel can discern no error in the assessment by the Medical Assessor that CRPS was not a rateable diagnosis in this case.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 October 2022 should be confirmed.
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